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Decision No. 15,906

Appeal of a STUDENT WITH A DISABILITY, by his parents, from action of the Board of Education of the Lakeland Central School District regarding student discipline.

Decision No. 15,906

(March 26, 2007)

Shaw, Perelson, May & Lambert, LLP, attorneys for respondent, Michael K. Lambert, Esq., of counsel

MILLS, Comissioner.--Petitioners appeal the suspension of their son by the Board of Education of the Lakeland Central School District (“respondent”).  The appeal must be dismissed.

Petitioners’ son is an African American student with a disability who has an individualized education program (“IEP”) provided by respondent’s Committee on Special Education (“CSE”).  On December 19, 2007, petitioners’ son, then a ninth grade student in respondent’s high school, was suspended for five days for possessing a pocket knife in school.  On December 21, 2007, petitioners received written notice from respondent’s superintendent that a hearing would be held January 4, 2008 to determine whether their son would be suspended beyond five days on charges of insubordination and that he endangered the safety, morals, health or welfare of others when he was in possession of a pocket knife and/or when he refused the reasonable directive to give the pocket knife to the school psychologist while in her office during fourth period on December 19, 2007.

The hearing was held on January 9 and 11, 2008.  By letter dated January 17, 2008, the superintendent informed petitioners of his determination that the student was guilty of possessing a pocket knife but not insubordination.  Because the CSE determined that there was a direct relationship between the student’s behavior and his disability, no additional suspension was imposed.  The superintendent denied petitioners’ request that references to the initial suspension be expunged from their son’s educational records. 

Petitioners appealed the superintendent’s determination to respondent on February 20, 2008.  By letter dated April 1, 2008, respondent provided petitioners with a copy of its March 31, 2008 decision directing that their son’s educational records be expunged of references to the hearing but not to the five day suspension.  The decision upheld the finding that the student possessed a pocket knife on school district property and found that possession of a pocket knife on school grounds inherently endangers the safety, morals, health or welfare of others.  This appeal ensued.

Petitioners admit that their son brought a pocket knife to school but allege that he did so accidentally, did not open it, show it to or threaten anyone with it, and voluntarily gave the knife to the assistant principal.  Petitioners contend that respondent’s refusal to expunge references to the five day suspension discriminated against him based on race and disability and deprived him of due process.  Petitioners also contend that respondent’s decision was in retaliation for making public and private complaints of racial discrimination and requesting that respondent adopt a multicultural curriculum and hire a more racially diverse faculty and staff.

Respondent denies discriminating against petitioners and their son and asserts that his possession of a pocket knife in school, whether intentionally or accidentally, is an infraction under its code of conduct warranting the five day suspension.  Respondent contends that it clearly indicated its reason for upholding the five day suspension and not expunging the student’s record in its finding that “possession of a pocketknife on school grounds inherently endangers the safety, morals, health of welfare of others.”  Respondent alleges that it implemented a substantial multi-cultural, character education and training component for both staff and students prior to petitioners’ concerns and maintains that its decision to uphold the five day suspension was based on the record of the suspension hearing and post-hearing submissions described in its March 31, 2008 decision.

In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief (8 NYCRR §275.10; Appeal of Brown, 46 Ed Dept Rep 584, Decision No. 15,602; Appeals of Hubbard, 46 id. 533, Decision No. 15,585; Appeal of Darrow, 46 id. 182, Decision No. 15,477).

The decision to suspend a student from school pursuant to Education Law §3214 must be based on competent and substantial evidence that the student participated in the objectionable conduct (Bd. of Educ. of Monticello Cent. School Dist. v. Commissioner of Educ., et al., 91 NY2d 133; Bd. of Educ. of City School Dist. of City of New York v. Mills, et al., 293 AD2d 37; Appeal of L.Z., 46 Ed Dept Rep 518, Decision No. 15,581; Appeal of A.W., 46 id. 367, Decision No. 15,535).

Respondent’s code of conduct prohibits the possession on school property of dangerous or deadly weapons or other potentially dangerous objects.  It generally defines a “weapon” as:

... a firearm, ... dagger, dirk, razor, stiletto, switchblade knife, gravity knife, brass knuckles, sling shot, metal knuckle knife, box cutter, cane sword ... or other device, instrument, material or substance that can cause physical injury or death...

The definition does not specifically mention pocket knives.  Respondent, however, maintains that a pocket knife falls within the “catch-all” provision as an instrument capable of causing injury or death.

Petitioner argues that a different provision of the code addresses pocket knives, and this provision prevents their son’s discipline.  I disagree.

Under respondent’s code, a student with a disability may be suspended and placed in an Interim Alternative Educational Setting (“IAES”) for up to 45 school days after being found guilty of a violation involving a weapon.  In that instance only, “weapon” is defined, consistent with §201.2(s) of the Commissioner’s regulations, to mean:

a weapon, device, instrument, material or substance, animate or inanimate, that is used for, or is readily capable of causing death or serious bodily injury, except that such term does not include a pocket knife with a blade of less than 2-1/2 inches in length.

Because petitioner’s son was not placed in an IAES and there is no allegation that the five day suspension changed his placement, I find that this provision is inapplicable.

A principal may suspend a student with a disability for a period not to exceed five consecutive school days to the same extent that a nondisabled student would be subject to suspension for the same behavior except if the removal would result in a change of placement which is not alleged here (8 NYCRR §201.7[b],[d]). 

The record reflects that the pocket knife exception applies only to students with disabilities placed in an IAES.    

Applying the general definition of a weapon, respondent’s March 31, 2008 decision found that possession of a pocket knife on school grounds inherently endangers the safety, moral, health or welfare of others and upheld the superintendent’s suspension.  I find respondent’s interpretation of its code to be reasonable (seeAppeal of J.R. and N.R., 48 Ed Dept Rep ___, Decision No. 15,848).  Accordingly, there is no basis for annulling respondent’s determination of guilt.

I have considered petitioners’ remaining contentions and find they lack merit.